Page images
PDF
EPUB

future may be shown, to be necessary to the prosperity and strength of the State, although such necessary laws may in some way or other affect contracts previously entered into.” Among such necessary laws are police regulations, exemptions from forced sales on execution of necessary implements of agriculture, the tools of mechanics, necessary household furniture for the use of the family and their wearing apparel, exemption of a portion of the wages of laborers, etc. Parties making contracts, I think, should be charged with notice that the legislature has a right to make such necessary changes in the laws, and that it should be presumed that they intended their contracts to be subject to such reasonable and necessary changes.

Certainly, any change or limitation of the remedy which does not materially abridge the right does not impair the obligation of the contract. Ås stated in Van Hoffman v. City of Quincy, 4 Wall., 55+; 18 L. Ed., 403, “every case must be determined upon its own circumstances.” In the case at bar it is conceded that the defendant has a family dependent upon him for support, and that his only means of doing so is his wages. It is a matter of common knowledge that, at the time and previous to the passage of the act limiting the remedy by garnishment, many other citizens of the State were in the same situation as the defendant, and that, owing to the financial crisis which prevailed, it was a difficult task for the laborer to earn sufficient to properly support his family. In view of these facts, the limitation of the remedy of garnishment was reasonable and necessary, and is not such a change as impairs the obligation of the contract. It is ordered that the judgment of the court below be affirmed, and that the appellant pay the costs.

CONSTITUTIONALITY OF STATUTE-FORBIDDING THE INSTITUTION IN A FOREIGN STATE BY A RESIDENT OF ONE STATE OF AN ACTION AGAINST THE WAGES OF A RESIDENT OF THE SAME STATE– In re Flukes, 57 Southwestern Reporter, page 545.-An application was made in the supreme court of Missouri, division No. 2, by one Helen Flukes for a writ of habeas corpus to procure her discharge from an indictment charging her with suing a resident wage-earner in a foreign State. The court rendered its decision in the April term, 1900, and discharged the prisoner, declaring the statute under which she had been indicted to be unconstitutional and void.

The opinion of the court reverses the statute and gives the facts in the case and the reasons for the decision. It was delivered by Judge Sherwood, and reads in part as follows:

This is an original proceeding instituted in the court, the object of which is to test the constitutionality of an act passed by the fortieth general assembly of this State, which act is the following: “Every person or persons, company, corporation or firm, and every agent of any person or persons, company, corporation or firm, who shall take or send, or cause to be taken or sent, out of this State any note, bond, account or chose in action for the purpose of instituting or causing to be instituted any suit thereon in a foreign jurisdiction against a resident of this State, for the purpose of having execution, attachment,

cor

garnishment, or other process issued in such suit, or upon a judgment rendered in any such suit, against the wages of a resident of this State, and having such process served upon any person who is, or firm, company or corporation which is subject to the processes of the courts of this State, who is indebted or may become indebted to a resident of this State for wages, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail for a period of not less than thirty days nor more than ninety days.” (Section 2356, Rev. Stat., 1899.) If the act just quoted be unconstitutional, the petitioner's right to be discharged can be no longer questioned in this court, because we now treat (just as it ought always to have been treated) an unconstitutional law as no law at all.

When put in more condensed form, the section on which the prosecution of the petitioner is based gives forth these results: It subjects any person, etc., to a fine of not less than $100 nor more than $500, and imprisonment in the county jail for not less than 30 nor more than 90 dars, who sends out of this State, etc., any note, etc., account, etc., for the purpose of "instituting

any suit thereon in a foreign jurisdiction against a resident of this State, for the purpose of having execution, attachment, garnishment," etc., “issued in such suit, or upon a judgment rendered in such suit, against the wages of a resident of this State, and having such process served upon any poration * * *

subject to the processes of the courts of this state, which is indebted

to a resident of this State for wages.' C'nder the provisions of section 3435, Rev. Stat., 1899, no person can be “charged as garnishee, on account of wages due from him to a defendant in his employ for the last thirty days' service: Provided, Such employee is the head of a family and a resident of this State." It will thus be seen that under the laws of this State the wages of a single person, an employee and a resident of this State, are not exempt from the process of garnishment here, while under the terms of section 2356such wages are expressly exempted from the process of garnishment in another State, unless the creditor who attempts to garnish them over there is willing to incur the punishment of both fine and imprisonment for such a course. This, in effect gives to single and uninarried persons who are residents of and employees in this State an exemption in Illinois and other States that they are not allowed in this the State of their residence. This results in exempting all those single men, residents, etc., whose wages are attempted to be seized under process of a foreign court, while it leaves unexempted those whose wages are garnished under process of our own courts. Besides, those wage-earners, residents of this State, who are married, can only claim in this State an exemption of wages due for the last 30 days' service, while they, and all single wage-earners, by the law in question, so far as concerns suits in foreign jurisdictions, are exempt, without any limit to their exemption.

The effects of the section are more widespread than already related, as will presently appear. The creditor of any other than a wage-earner may freely send over to Illinois or elsewhere, without fear of arrest or of tine or imprisonment "any note, bond, account or chose in action,” and institute such suit as he may please, and obtain any such process as he may desire, and levy and seize on any personal or real or mixed

10332—No. 33—01—-12

property or debts or wages, and may collect his claim in due and usual course of law, without let or hindrance. Why should such discrimination be made among creditors merely because the debtors in one case receive their remuneration for their labor in wages, and in the other case in cash payments day by day, or in a cow, horse, produce, or a tract of land?

Again, the creditor, though resident of this State, while he may not institute suit in a foreign jurisdiction, in the manner contemplated in section 2356, on a “note, bond, account or chose in action, yet, so soon as he converts his note, etc., into a judgment against his wageearning debtor, he immediately becomes “law proof,” so far as concerns the section under discussion, and, securing a copy of his judgment, may do with it as he will, so far as foreign courts and processes are concerned, even against his co-resident and wage-earning debtor, and can not be punished for so doing. This instance affords fresh illustration of the discriminations which the questioned law makes in favoi of some creditors and against others-those who live side by side in the same town.

Furthermore, the controverted law does more still. Not content with its rigorous restrictions and severe punishments on creditors resident of this State, it levels its denunciations against all mankind. It comprehends within its forbidding and globe-encircling enactment all creditors having a note, bond, account, or chose in action within the confines of this State who dare to send or cause to be sent such note, etc., to another State, to institute a suit on it as contemplated in the section under review. Is not such a far-reaching, world-embracing law beyond the power of the legislature to make valid? But the act does not stop even there. It separates wage-earners in a way different from any yet suggested. Only those wage-earners who are in the employ of any person who is, or firm, company or corporation which is subject to the processes of the courts of this State," are under the protection of the statute. If the person, firm, company, or corporation is not subject to such processes, then there is no prohibition against the creditor sending his note, etc., into a foreign jurisdiction for collection.

By the provisions of the litigated statute the act of sending a note out of this State for the purpose, etc., is made a crime. Under the prohibition of section 1, article 14, of the amendments to the Constitution of the United States, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Our own constitution contains a provision which declares “that no person shall be deprived of life, liberty or property without due process of law (seetion 30, art. 2), and also a provision forbidding the legislature to grant "to any corporation, association or individual any special or exclusive right, privilege or immunity” (section 53, art. 4). And section 2, art. 4, of the Constitution of the United States prescribes that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."

As is said by an eminent judge: “The rights thus guaranteed are something more than the mere privileges of locomotion. The guaranty is the regation of arbitrary power in every form which results in the deprivation of a right. These terms, life,' 'liberty,' and 'property,' are representative terms, and cover every right to which a member of the body politic is entitled under the law. Within their comprehensive scope are embraced the right of self-defense, freedom of speech, religious and political freedom, exemption from arbitrary arrests, the right to buy and sell as others may--all our liberties, personal, civil, and political; in short, all that makes life worth living; and of none of these liberties can any one be deprived, except by due process of law.” (2 Story, Const. (5th ed.) sec. 1950; State v. Julow, 129 Mo., 163; 31 S. W., 781; 29 L. R. A., 257.)

Sow, as elsewhere stated, each of the rights heretofore mentioned carries with it, as its natural and necessary coincident, all that effectuates and renders complete and full, unrestrained enjoyment of that right. And it has been determined by this court and other courts that no one can be deprived of a vested right of action without infringing on that provision of our constitution and that of the United States respecting the deprivation of life, liberty, and property without due process of law. And this court has also determined that it does not lie in the power of the legislature to make that act a crime which consists in the bare exercise of a simple constitutional right. (State v. Julow, xupra.) The right to bring a suit to enforce a contract is part and parcel of that contract; and one of the essential attributes of property, of which the owner can not be deprived if the organic law of both State and nation be obeyed.

The act under discussion also deprives any creditor, as therein mentioned, of the equal protection of the laws, and abridges the privileges and immunities of citizens of the United States, and denies to such creditors those rights which section 2, art. 4, of the Constitution of the l'nited States grants to them, by declaring that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." A citizen of New York or of California could bring just such a suit as the petitioner has brought, and be held wholly blameless. The act is also obnoxious to the charge that it grants special and exclusive privileges to certain persons or associations of persons, and denies the same to others in the same or similar situations.

Finally, section 2356 undertakes to arbitrarily separate natural classes of people, and to provide different rules of action for each of the dissevered fractions, thus unwarrantably formed into a class of its own. (State r. Julow, supra.) The premises considered, we declare the law unconstitutional, on the various grounds hereinbefore set forth, and hence discharge the prisoner. All concur.

EMPLOYERS' LIABILITY-CONTRIBUTORY NEGLIGENCE-CONSTRUCTION OF STATUTE-Hoadley v. International Paper Co., 47 Atlantic Reporter, page 169.--Action was brought by Justus R. Hoadley, administrator of the estate of Michael Kennedy, deceased, against the above-named company to recover damages for the death of the decedent, who, while at work in the company's mill upon repairs to a pulp digester received injuries which caused his death within 2 or 3 days thereafter. A judgment was rendered in favor of the plaintiff in the county court of Rutland County, Vt., where the case was heard, and the defendant carried it upon exceptions to the supreme court of the State, which rendered its decision December 4, 1899, and affirmed the judgment of the lower court.

The opinion of the court, delivered by Judge Thompson, contains one point of interest, and in this connection the following was said therein:

The defendant excepted to the refusal of the county court to direct a verdict for it on the ground that the alleged negligence causing the death of the decedent occurred while he was at work Sunday on the defendant's pulp digester in its paper mill at Bellows Falls, Vt. The defendant also excepted to the charge to the jury on this subject. The instruction was, in substance, that the plaintiff was entitled to recover, if his case was made out in other respects, notwithstanding that the decedent at the time of the accident was working for the defendant on Sunday, if the jury found that defendant's negligence was the proximate cause of his death, and his working Sunday the remote cause. It is now contended by the defendant that the decedent was working in violation of V. S., sec. 5140, which prohibits the exercise of any business or employment, except works of necessity or charity, between 12 o'clock Saturday night and 12 o'clock the following Sunday night, under a penalty of not more than $2, and that consequently the plaintiff is precluded from recovery. The jury found that the negligence of the defendant was the proximate cause of the death of the decedent, and that he was not guilty of contributory negligence.

There is a conflict of authorities on this subject, but the view adopted by the weight of authority is against the contention of the defendant. This view accords with reason and the general principles of the law applicable to torts. The fact that the decedent was working for the defendant on Sunday can not be said to be, either in law or in fact, contributory negligence concurring to produce the injury, nor the proximate cause of it. The motion for a verdict on this ground was properly denied. The charge on this subject was more favorable to the defendant than it was entitled to have given, and the exception thereto can not be sustained.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-CONSTRUCTION OF STATUTE-FELLOW-SERVANTS— Long v. Chicago, Rock Island and Texas Ry. Co., 57 Southwestern Reporter, page 802.—This was a suit for damages brought by G. J. Long on account of injuries incurred by him while in the employ of the above-named railroad company. The case was tried before an inferior court in the State of Texas, without a jury, and the judge thereof gave judgment for the defendant. His conclusions of fact and law, filed as legally required, showed, among others, the following facts: That the plaintiff was a section man employed by said railroad and was at work on the day of the accident with a gang of about 20 others; that it was their custom to return to the tool house at the close of each day's work and place the

« PreviousContinue »